If You Were on the Jury . . .

One of the reasons so often given for restricting barefooters is the fear of a lawsuit. Of course, they never seem to think about lawsuits from injuries from high heels or other footwear, and they never really think about just what sort of injury a barefooted customer would most likely get. (Is a cut really worth suing over?)

But I suppose it could occasionally happen. What would you do if you were on the jury . . .?

So, suppose you were on the jury of a negligent injury lawsuit. Here’s the situation.

A barefoot woman came into a gas station to pay for gas and pick up a few food items. She claims that as she approached the counter, there was a metal strip protruding from the base, and that she cut her foot on it. She also has a picture of the scene that does show a metal strip sticking out a bit.

The gas station says they had no idea that that strip was protruding, it’s not protruding much, and besides, they say, “She was barefoot!”

Now, there are legal conditions that must be met before one can collect in an injury lawsuit. That can vary slightly from state to state. For instance, here in Ohio, it must be established that

the owner (or employees) created the hazardous situation

or

had actual knowledge of the hazardous situation and did nothing to fix it or warn the customer,

or

the hazard was there long enough and was obvious enough that the owner (or employees) should have discovered and removed it.

There is another issue, called contributory negligence. Sometimes injuries can happen because the customer’s actions contributed to it. If that is the case, the court (that is, the jury if there is one, or the judge if not) tries to weigh the relative fault of each party. At the end, any award of damages is split proportionally with that fault, but with the proviso that, if the customer’s fault was more than 50%, they collect nothing.

So, back to our gas station. You are on the jury after hearing the facts, above. (Try to pretend that you don’t have a vested interest in barefooting, and that you are a regular member of the public.)

How would the case get decided? What would you and the other jurors decide? Wouldn’t you say that she should expect that to happen sometimes?

Well, we don’t have to speculate. I’ve described an actual case, Anderson v. Racetrac Petroleum, 296 S.C. 204, 371 S.E.2d 530 (S.Car. 1988). This is the only case I’ve ever been able to find (since the 1930s) in which a barefooted person cut their foot in a store and sued. (Note: that doesn’t mean there weren’t others. The databases only include cases that were appealed.)

The reason that the case was appealed was that the trial court decided the case based on contributory negligence on its own, and the South Carolina Supreme Court said that that was an error, the jury is the one that should have decided it.

So, the case went back to the jury, and I have a copy of the jury sheet:

Click for larger, readable version

(The “defendant” is the gas station.)

And that is another reason that businesses ought not be too concerned about barefooted customers.

(And yes, you might say, but they had to go through the expense of a lawsuit. The thing is, people sue for all sorts of stuff, and I have lists of a zillion shod lawsuits, and there is no evidence that barefooted customers are more prone to sue unjustifiably than the shod. In fact, I’d argue that the barefooted are well-aware that a lawsuit might lead to further restrictions on our freedom to go barefoot.)

[H/T Bill Shakely, for helping me get the jury sheet in this case.]